she came before R. Nahman [to claim the return of her estate]. R. Nahman tore up the deed.1 R. Anan, thereupon, went to Mar 'Ukba2 and said to him, 'See, Master, how Nahman the boor3 tears up people's deeds'. 'Tell me', the other said to him, 'how exactly the incident occurred'. 'It occurred', he replied,' in such and such a manner'. 'Do you speak', the other exclaimed, 'of a deed a woman intended as a means of evasion?4 Thus said R. Hanilai b. Idi in the name of Samuel: I am an officially recognized judge,5 and should a deed which a woman intended as a means of evasion4 come into my hand I would tear it up.
Said Raba to R. Nahman:6 What in fact is the reason?7 [Obviously] because no man would neglect himself and give his property away to others. But this would apply to strangers only, whilst to a daughter one might well give!8 — Even in the case of a daughter a woman gives preference to her own person.9
An objection was raised: If a woman desires to keep her property from her husband, how is she to proceed? She writes out10 a deed of trust11 to a stranger;12 so R. Simeon b. Gamaliel.13 But the Sages said: If he14 wishes he may laugh at her15 unless she wrote out for him: '[You shall acquire possession] from this day whenever I shall express16 my consent',17 The reason then18 is because she wrote out for him in the manner prescribed;19 but had she not done so, the [fictitious] buyer would have acquired [would he not] possession of it?20 — R. Zera replied: There is no difficulty. One ruling21 refers to [a woman who has assigned to the stranger] all her property;22 the other,23 to [a woman who assigned to a stranger] a part of her property. But if the buyer does not24 acquire her property25 the husband26 should acquire it!27 — Abaye replied: It28 was treated as property WHICH IS UNKNOWN TO THE HUSBAND29 in accordance with the view of R. Simeon.30
MISHNAH. [IF A MARRIED WOMAN] CAME INTO THE POSSESSION OF MONEY, LAND SHOULD BE BOUGHT THEREWITH AND THE HUSBAND IS ENTITLED TO THE USUFRUCT.31 [IF SHE CAME INTO THE POSSESSION OF] PRODUCE THAT WAS DETACHED FROM THE GROUND,32 LAND SHOULD BE BOUGHT THEREWITH AND THE HUSBAND IS ENTITLED TO THE USUFRUCT. [IF IT WAS] PRODUCE ATTACHED TO THE GROUND, THE LAND,33 R. MEIR RULED, IS TO BE VALUED AS TO HOW MUCH IT IS WORTH WITH THE PRODUCE34 AND HOW MUCH WITHOUT THE PRODUCE, AND WITH THE DIFFERENCE35 LAND SHOULD BE BOUGHT36 AND THE HUSBAND IS ENTITLED TO ITS USUFRUCT.37 THE SAGES, HOWEVER, RULED: ALL PRODUCE ATTACHED TO THE GROUND BELONGS TO THE HUSBAND38 AND ONLY THAT WHICH IS DETACHED FROM IT39 BE LONGS TO THE WIFE; [WITH THE PROCEEDS OF THE LATTER] LAND IS TO BE BOUGHT AND THE HUSBAND IS ENTITLED TO THE USUFRUCT.40
R. SIMEON SAID: IN RESPECT OF THAT41 WHEREIN THE HUSBAND IS AT AN ADVANTAGE WHEN HE MARRIES HIS WIFE42 HE IS AT A DISADVANTAGE WHEN HE DIVORCES HER43 AND IN RESPECT OF THAT WHEREIN HE IS AT A DISADVANTAGE WHEN HE MARRIES HER HE IS AT AN ADVANTAGE WHEN HE DIVORCES HER. HOW SO? PRODUCE WHICH IS ATTACHED TO THE GROUND IS THE HUSBAND'S WHEN HE MARRIES HIS WIFE44 AND HERS WHEN HE DIVORCES HER,45 WHILST PRODUCE THAT IS DETACHED FROM THE GROUND IS HERS WHEN SHE MARRIES46 BUT THE HUSBAND'S WHEN SHE IS DIVORCED.47
GEMARA. It is obvious48 [that if husband and wife differ on the choice of purchase between] land and houses,49 land [is to receive preference].50 [If they differ on the choice between] houses and date-trees, houses [are to receive preference].51 [If they insist respectively on] date-trees and other fruit trees, date-trees [are to receive preference].51 [If their dispute is on] fruit trees and vines, fruit trees [are to receive preference].51 [What, however, is the ruling if the husband desires to purchase]52 a thicket of sorb53 or a fish pond?54 — Some maintain that it is regarded as55 produce;56 and others maintain that it is regarded as57 capital.58 This is the general rule:59 If the stump grows new shoots60 it is regarded as capital,61 but if the stump grows no new shoots it is regarded as produce.62
R. Zera stated in the name of R. Oshaia in the name of R. Jannai (others say, R. Abba stated in the name of R. Oshaia in the name of R. Jannai), If a man steals
Original footnotes renumbered.
- Of the gift which the daughter produced.
- Who was Ab Beth Din (v. Glos.). [The reference is to Mar 'Ukba II, v. Funk, Die Juden in Babylonian I, notes p. XIV.]
- [H], lit., 'field-labourer'; 'uncultured fellow'.
- [H] (Hif. of [H]), lit., 'one who causes to flee' or 'to escape'.
- He was appointed to that office by the Resh Galutha or Exilarch (v. Sanh. 5a). [H], lit., 'guide for ruling', one who gives directions or decisions on questions of ritual and legal practice.
- When he tore up the deed of gift which the daughter produced.
- Why Samuel (upon whose ruling R. Nahman relied) did not recognize the validity of a deed that was intended as a means of evasion.
- On what authority then did R. Nahman tear up the deed which had been produced by the woman's daughter?
- And it may safely be assumed, therefore, that the gift was intended as a temporary one which was to revert to the donor as soon as the cause that impelled her to make the gift had been removed.
- Prior to her marriage.
- [H] (or [H] cf. Aruch and last.), a deed of a feigned sale or gift with which one person entrusts (cf. [H] 'trust') another in order to make people believe (in the interests of one of the parties) that a proper sale or presentation had actually taken place.
- Lit., to another', so MS.M. Cur. edd. 'to others'.
- Who, maintaining that such a deed has no legal validity, the holder of the deed having no claim whatever upon the property specified in it, considers the fictitious transaction as a safe protection for the woman.
- The holder of the deed.
- I.e., he may retain possession of the property by virtue of the deed; and thus refuse to return it to her.
- At any time in the future.
- Tosef. Keth. IX. In this case only is the woman protected against the holder of the deed as well as against her husband. For should the latter claim the property she can evade him by expressing consent to its acquisition by the stranger; and should the stranger claim possession she can exercise her right of refusing to give her consent.
- Why the holder of the deed cannot claim possession of the property in the case mentioned.
- Lit., 'thus'.
- This, then, is in contradiction to the ruling of Samuel supra.
- Lit., 'that', Samuel's view.
- Since no person would give away all his property to a stranger it is pretty obvious that the deed related to a fictitious transaction.
- The ruling of the Sages in the Baraitha cited.
- Where the woman's entire property had been assigned to him.
- In consequence of which the woman remains Its legal possessor.
- Who is entitled to the usufruct of his wife's possessions during her lifetime and to her capital also after her death.
- Why should the property be awarded to the woman?
- Property fictitiously transferred by a woman prior to her marriage.
- Since he believes the transaction to have been a genuine one, the husband does not expect ever to enjoy the use of the property in question.
- Our Mishnah ad fin.
- The land itself remaining in the possession of the woman.
- I.e., after being harvested.
- Which remains the property of the woman.
- Which, having grown before the land came into possession of the woman, remains her property, in the opinion of R. Meir, like the land itself.
- Lit., 'remainder', i.e., the value of the attached produce which is the property of the woman (v. supra note 7) and not of the husband who, according to R. Meir, is entitled only to such produce of his wife's land as grows after, but not before he had become entitled to the usufruct.
- Thus turning the proceeds of the produce into capital.
- The purchased land remaining the property of the wife (cf. supra note 4).
- Even if it grew before he had become entitled to the usufruct of the land.
- At the time he marries the woman, when he acquires the right to the usufruct.
- Cf. supra note 4.
- Lit., 'in the place'.
- Lit., 'at her entrance', sc. into her married state.
- Lit., 'at her going out'.
- If at that time they were still attached. This is in agreement with the view of the Sages supra and the point of difference between them and R. Simeon is discussed infra.
- A divorced woman being entitled not only to the land (which was hers all the time) but also to all produce of such land that had not been detached prior to her divorce.
- It is consequently turned into capital by purchasing therewith land to the usufruct of which the husband is entitled while the land itself remains in the possession of the woman.
- All detached fruit belonging to the husband who is entitled to the usufruct of his wife's land.
- When A MARRIED WOMAN CAME INTO THE POSSESSION OF MONEY which, as stated in our Mishnah, is to be invested in LAND, sc. a reliable profit yielding security.
- Each insisting on his or her choice.
- Land being a safer and better investment than houses both as regards durability (which is an advantage to the wife who remains the owner of the capital) and yield (which is an advantage to the husband who has the right of usufruct).
- Cf. supra n. 9 mutatis mutandis.
- Cf. supra n. 7. This is the interpretation of R. Tam and R. Han. (V. Tosaf. s.v. [H]) contrary to Rashi.
- Which can only be used for the cutting of its wood and which is valueless after the wood has been cut.
- That loses all its value after the fish have been removed.
- Lit., 'they say concerning it'.
- Since no capital remains (cf. supra p. 498, nn. 12 and 13) for the woman. Hence it is her right to veto such a purchase.
- Cf. supra n. 14.
- Because the land of the thicket and the pond respectively remain after the sorb had been cut or the fish had been removed. Against such a purchase, therefore, the woman may not exercise her veto.
- Laid down by the authors of the first ruling.
- I.e., if after the first yield had been disposed of the capital continues to yield further produce or profit.
- So R. Han. (v. Tosaf. a.l. s.v. [H]). Cur. edd., followed by Rashi, read produce'.
- V. supra n. 5. Cur. edd., followed by Rashi, read, 'capital'. As a thicket of sorb or a fish pond produces only one yield (cf. supra p. 498. on. 12 and 13) it may not be purchased (v. supra p. 498, n. 7) if the woman objects (cf. supra n. 15).
the young of a melog1 beast he must pay double2 its value to the woman.3 In accordance with whose [view has this ruling4 been laid down]? Is it in agreement with neither that of the Rabbis nor with that of Hananiah? For it was taught: The young of a melog beast belongs to the husband; the child of a melog bondwoman belongs to the wife; but Hananiah the son of Josiah's brother ruled, The child of a melog bondwoman has been given the same legal status as the young of a melog beast!5 — It may be said to agree even with the opinion of all,6 for it is the produce alone that the Rabbis in their enactment have assigned to the husband but not the produce that accrues from this produce.7
[The view] of Hananiah is quite logical on the assumption8 that death9 is not to be taken into consideration,10 but [what principle is followed by] the Rabbis? If they do take into consideration the possibility of death,11 even the young of a melog beast also should not [belong to the husband], and if they do not take the possibility of death into consideration,12 then even the child of a bondwoman also [should belong to the husband]!13 — They do in fact take the possibility of death into consideration,11 but the case of the beast is different [from that of a bondwoman] since its skin remains.14
R. Huna b. Hiyya stated in the name of Samuel: The halachah is in agreement with Hananiah. Said Raba in the name of R. Nahman: Although Samuel said, 'The halachah is in agreement with Hananiah', Hananiah admits that if the woman is divorced she may pay the price [of the bondwoman's children] and take them because [they constitute] the pride of her paternal house [which she is entitled to retain].15
Raba stated in the name of R. Nahman: If a woman brought to her husband16 a goat for milking, a ewe for shearing, a hen for laying eggs, or a date-tree for producing fruit, he may go on eating [the yield of any of these]17 until the capital is consumed.
R. Nahman stated: If a woman16 brought to her husband a cloak18 [its use] is [to be regarded as] produce and he may continue to use it as a covering until it is worn out.19
In accordance with whose view [has this statement20 been made]? — In agreement with the following Tanna,21 for it has been taught: Salt or sand22 is regarded as produce;23 a sulphur quarry or an alum-mine24 is regarded, R. Meir said, as capital,25 but the Rabbis said, As produce.26
R. SIMEON SAID: IN RESPECT OF THAT WHEREIN THE HUSBAND IS AT AN ADVANTAGE. [Is not this view of] R. Simeon identical [with that of] the first Tanna?27 — Raba replied: The difference between them is [the case of produce that was] attached at the time of the divorce.28
MISHNAH. IF AGED BONDMEN OR BONDWOMEN FELL TO HER29 [AS AN INHERITANCE] THEY MUST BE SOLD, AND LAND PURCHASED WITH THE PROCEEDS, AND THE HUSBAND CAN ENJOY THE USUFRUCT THEREOF. R. SIMEON B. GAMALIEL SAID; SHE NEED NOT SELL THEM,30 BECAUSE THEY ARE THE PRIDE OF HER PATERNAL HOUSE.31 IF SHE CAME INTO THE POSSESSION OF OLD OLIVE-TREES OR VINES THEY MUST BE SOLD,32 AND LAND PURCHASED WITH THE PROCEEDS, AND THE HUSBAND CAN ENJOY THE USUFRUCT THEREOF. R. JUDAH SAID: SHE NEED NOT SELL THEM, BECAUSE THEY ARE THE PRIDE OF HER PATERNAL HOUSE.31
GEMARA. R. Kahana stated in the name of Rab: They33 differ only where [the olive-trees or vines] fell [to the woman] in her own field,34 but [if they were] in a field that did not belong to her35 she must, according to the opinion of all, sell them;36 because [otherwise] the capital37 would be destroyed.38 To this R. Joseph demurred: Are not BONDMEN OR BONDWOMEN39 the same as [trees in] a field that does not belong to her40 and there is nevertheless a dispute?41 — The fact is, if the statement42 has at all been made it must have been made in the following terms: R. Kahana stated in the name of Rab, They43 differ only where [the olive-trees and vines] fell [to the woman] in a field that did not belong to her44 but [if they were] in her own field45 it is the opinion of all that she need not sell them because [she is entitled to retain] the pride of her paternal house.
MISHNAH. HE WHO INCURRED EXPENDITURE IN CONNECTION WITH HIS WIFE'S [MELOG]46 PROPERTY, WHETHER HE SPENT MUCH AND CONSUMED47 LITTLE, [OR SPENT] LITTLE AND CONSUMED MUCH, WHAT HE HAS SPENT HE HAS SPENT, AND WHAT HE HAS CONSUMED HE HAS CONSUMED.48 IF HE SPENT BUT DID NOT CONSUME HE MAY TAKE AN OATH AS TO HOW MUCH HE HAS SPENT AND RECEIVE COMPENSATION.
GEMARA. How much is considered LITTLE? — R. Assi replied: Even one dried fig; but this applies only where he ate it in a dignified manner.49 Said
Original footnotes renumbered.
- V. Glos.
- V. Ex. XXII, 6ff.
- And not to the husband. Since a beast dies, and its yield ceases, the young must replace it as capital and is consequently the property of the wife. It may not be consumed by the husband but may be sold, and a produce-yielding object purchased with the proceeds.
- In the statement made in the name of R. jannai.
- And belongs to the husband.
- Both with that of the Rabbis and that of Hananiah.
- The young is the 'produce' of the beast but the 'double' that the thief pays as restitution is the produce of that young and consequently the 'produce of the produce' of the beast. This belongs to the wife.
- Lit., 'that is'.
- Either of the bondwoman or of the beast.
- Hence his ruling that the child of the bondwoman, as well as the young of the beast, are to be regarded as produce which belongs to the husband, the bondwoman or the beast being regarded as the 'capital' which remains in the possession of the wife.
- As implied by their ruling that 'the child of the melog bondwoman belongs to the wife' (cf. supra p. 499 n. 9 mutatis mutandis) and not to the husband.
- As their ruling that 'the young of a melog beast belongs to the husband' seems to imply.
- How then can the two rulings be reconciled?
- And constitutes a small capital which remains the possession of the woman so that the young is treated as 'produce'.
- Cf. Yeb. 66b.
- On marriage.
- Since milk, wool, eggs and fruit are the 'produce' of the goat, the ewe, the hen and the tree respectively and, even when the yield ceases, the woman is still left with some capital such as the skin of the goat and the ewe, the feathers of the hen or the wood of the date-tree.
- As melog property.
- The shreds being regarded as the woman's capital.
- Of R. Nahman that even shreds constitute capital.
- Sc. the Rabbis, infra, who differ from R. Meir.
- Of melog property situated on the sea shore.
- Since the yield is continual. It may, therefore, be used up by the husband.
- The supplies of which gradually come to an end.
- The quarry or the mine must he sold, and a constantly produce-yielding object is to he acquired with the proceeds.
- Which may he used up by the husband. The quarry or mine constitute in their opinion the capital which remains the property of the woman. Cf. supra note 2.
- The Sages, cf. supra p. 498, n. 3.
- Of which the Sages did not speak in our Mishnah. While according to R. Simeon such produce belongs to the woman, the Sages assign it to the husband because it grew prior to the divorce when he was still entitled to usufruct. That produce detached at the time of divorce belongs to the husband, as R. Simeon stated, cannot, of course, be a matter in dispute.
- A married woman.
- Even if her husband desires it (cf. Rashi).
- Which she is entitled to retain.
- 'As wood' (so the separate edd. of the Mishnah).
- The first Tanna and R. Judah in our Mishnah.
- I.e., if she came into the possession of the trees together with land in which they grew.
- If, for instance, her father from whom she inherited them did not own the soil and was only entitled to the trees alone until they withered.
- In order that land or any other produce-yielding capital might be acquired with the proceeds.
- Which should remain the permanent possession of the woman.
- When the trees withered.
- After whose death no capital whatsoever remains.
- Cf. supra note 6.
- Though the capital is destroyed.
- Attributed to Rab.
- The first Tanna and R. Judah in our Mishnah.
- V. supra note 3.
- V. supra note 2.
- V. Glos.
- By virtue of his right to its usufruct.
- He has no claim for compensation upon his wife should he divorce her.
- V. Kid. 45b.